Opinion
Civil Action 2:10-CV-874
12-09-2011
RICHARD K. ROSE, Plaintiff, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant.
Judge Smith
Magistrate Judge King
ORDER
This matter is before the Court on a motion to quash filed by non-parties the Ohio State Fire Marshal and Keith Elliott (together, "Fire Marshal"). Motion to Quash and Objections of the Ohio State Fire Marshal and Keith Elliott to the Plaintiff's Subpoena or, in the Alternative, Motion for a Protective Order for In Camera Inspection, Doc. No. 29 ("Motion to Quash").The Fire Marshal asks the Court to quash a subpoena issued by plaintiff to Mr. Elliot, an investigator with the State Fire Marshal who "investigated the cause and origin" of the fire at issue here. Motion to Quash, p.4; id., Ex. 1, Doc. No. 29-1. The Fire Marshall also submits an alternative request that this Court issue "a protective order to submit the Report under seal to this Court for an in camera inspection." Motion to Quash, p.11.
I. Background
This diversity action arises from defendant's denial of insurance benefits following a fire at plaintiff's property. Complaint, Doc. No. 5, ¶ 10. Plaintiff asserts that defendant denied his claim for benefits in bad faith and in breach of the insurance contract. Id., ¶¶ 12-24. Plaintiff initially filed the Complaint in state court. Id. Defendant filed a Notice of Removal in September 2010. Doc. No. 1.
Following removal, plaintiff served a subpoena on Mr. Elliot demanding (1) Mr. Elliott's presence at a deposition and (2) production of a "[f]ire investigation report concerning fire at property owned by Richard K. Rose, located at 655 Green Valley Drive, Bidwell, Ohio." Motion to Quash, Ex. 1, Doc. No. 29-1, p.1. The Fire Marshal filed the instant Motion to Quash objecting to the subpoena under Fed. R. Civ. P. 45(c)(2)(B) and asking the Court to quash the subpoena or, in the alternative, to issue a protective order prohibiting the deposition and document production. Motion to Quash, pp. 2-3.
The Fire Marshal's primary argument in support of the Motion to Quash is that the subpoena requires the disclosure of "privileged or other protected matter." See Fed. R. Civ. P. 45(c)(3)(A)(iii). The Fire Marshal also identifies certain alleged technical defects in the subpoena, including (1) a "fail[ure] to state the method for recording the testimony of Mr. Elliott"; (2) a failure of personal service; and (3) a failure to include "the requisite witness fee ($40) and mileage fee for Mr. Elliott's attendance at the deposition." Motion to Quash, p.10.
II. Discussion
A court must quash a subpoena if it "requires disclosure of privileged or other protected matter, if no exception or waiver applies." Fed. R. Civ. P. 45(c)(3)(A)(iii). A person "seeking to quash a subpoena bears the ultimate burden of proof." Hendricks v. Total Quality Logistics, LLC, 275 F.R.D. 251, 253 (S.D. Ohio 2011). In a diversity case, state law governs the application of privilege. Fed. R. Civ. P. 501; Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 296 n.1 (6th Cir. 2007). The Fire Marshal argues that Ohio law in particular governs this dispute. Motion to Quash, p.3. The Court will apply Ohio law to this dispute.
Plaintiff's primary privilege argument is that because "confidential law enforcement investigatory records are not considered public records [they are] therefore . . . protected from disclosure." Motion to Quash, Doc. No. 29, p.3. In making this argument, the Fire Marshal cites to Ohio Rev. Code § 149.43, which provides that "[c]onfidential law enforcement investigatory records" are not "public record[s]" for purposes of a request for inspection under Ohio Rev. Code § 149.32(B). Ohio Rev. Code § 149.43(A)(1)(h). The Fire Marshal's argument in this regard is misplaced.
As the Ohio Supreme Court recognized in Henneman v. City of Toledo, the Ohio Public Records Act does not create an "absolute privilege" from discovery and "does not protect records from a proper discovery request in the course of litigation, if such records are otherwise discoverable." 520 N.E.2d 207, 210-11 (Ohio 1988). In fact, the list of documents that are not considered "public record[s]" for the purpose of the Ohio Public Records Act serves only "to exempt the records described therein from the requirement of availability to the general public on request." Id. at 211; see also Mattox v. Village of Geneva on Lake, No. 1:05-CV-2325, 2006 WL 3762096, *1-2 (S.D. Ohio Dec. 20, 2006) (holding that Ohio Rev. Code § 149.43 "does not provide an absolute privilege against discovery requests in civil litigation"). In short, the Fire Marshal's primary privilege argument is without merit.
The Fire Marshal also appears to argue that these records are subject to a qualified privilege. In Henneman v. City of Toledo, which the Fire Marshal cites in support of this argument, the Ohio Supreme Court recognizes a qualified privilege rule applicable to the internal affairs records of police departments: "Records and information compiled by an internal affairs division of a police department are subject to discovery in civil litigation arising out of alleged police misconduct if, upon an in camera inspection, the trial court determines that the requesting party's need for the material outweighs the public interest in the confidentiality of such information." 520 N.E.2d at syllabus.
Although the holding in Henneman applies specifically to the internal affairs records of a police department, Ohio courts have noted that the same qualified privilege applies to "law-enforcement investigatory files." Wessell Generations, Inc. v. Bonnifield, 950 N.E.2d 989, 995 (Ohio Ct. App. 2011); see Romans v. Tex. Instruments, Inc., No. CVH 20100126, slip op. at 3 (Ohio Ct. Common Pleas Oct. 13, 2010) (noting "the confidentiality of the law enforcement investigatory records that have been filed with the Court under seal" and conducting an in camera review to determine whether disclosure is appropriate). Plaintiff does not dispute that a qualified privilege applies to certain law enforcement investigative reports. Brief in Support of Production of State Fire Marshall [sic] Report, Doc. No. 35, p.4. In order to determine whether it is appropriate to quash the subpoena, it is therefore necessary for this Court to determine whether plaintiff's "need for the material outweighs the public interest in the confidentiality" of the requested information. See Henneman, 520 N.E.2d at syllabus.
Here, the Fire Marshal argues that disclosure of the report and deposition of Mr. Elliott would improperly expose three types of information: "(1) a potential uncharged suspect or suspects or a witness or witnesses; (2) specific investigatory techniques and procedures; and (3) specific investigatory work product to an ongoing investigation of the cause, origin and location of the fire." Motion to Quash, p.5. Although plaintiff suggests that the requested discovery is relevant to his claim that defendant "had 'no credible evidence' to deny his claim for insurance proceeds" and that defendant "had acted in bad faith by denying the claim," plaintiff largely omits a substantive discussion of the relevance of the requested discovery to the allegations in his Complaint. Brief in Support of Production of State Fire Marshall [sic] Report, p.2. Additional briefing is therefore necessary on the issue of plaintiff's need for the requested material.
The Fire Marshal is therefore ORDERED to produce the fire investigation report for in camera inspection within 14 days of the date of this Order. Plaintiff is ORDERED to supplement his response to the Motion to Quash to address his need for the material within 14 days of the date of this Order. The Fire Marshal may file a reply within 7 days from the date that plaintiff's supplemental response is filed.
Because it is unnecessary to issue a protective order for documents submitted to the Court for in camera review, the Motion to Quash, Doc. No. 29, is DENIED to the extent that it requests a protective order. Consideration of the request to quash the subpoena in the Motion to Quash, Doc. No. 29, is RESERVED until the Court conducts its in camera inspection and reviews the related supplemental briefing.
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Norah McCann King
United States Magistrate Judge